Sundar Panditv. State Board of Retirement, CR-07-508 (DALA, 2009)

Sundar Pandit,

State Board of Retirement,

Sundar Pandit

373 Peakham Road Sudbury, MA 01776

Appearance for Respondent:

Erin C. Nally, Esq.

State Board of Retirement One Ashburton Place Boston, MA 02108

Administrative Magistrate:

James P. Rooney, Esq.

DECISION

Sundar Pandit, a former Department of Revenue employee, filed a timely appeal, under G. L. c. 32, §16(4), of a June 30, 2007 decision by the State Retirement Board denying his request for a termination retirement allowance under the provisions of M.G.L. c. 32, §10(2). I held a hearing in the appeal on September 30, 2008 at the Division of Administrative Law Appeals, 98 North Washington Street, Boston, Massachusetts. At the hearing, I admitted thirteen exhibits in evidence and left the record open to receive a fourteenth exhibit, which the Board filed on October 6, 2008. I marked Mr. Pandit's pretrial memorandum as Pleading A and the Board's pretrial memorandum as Pleading B. Mr. Pandit was the sole witness at the hearing.

Following his testimony, each party stated its arguments. I made one tape of the hearing.

FINDINGS OF FACT

Based on the testimony and exhibits presented at the hearing, I make the following findings of fact:

1. Sundar Pandit was born on July 11, 1953 and began working at the Massachusetts Department of Revenue on September 9, 1984. Pleading B. At the time of his ultimate termination, he worked as a Tax Examiner II, staffing the Department's hotline. Ex. 12.

2. Mr. Pandit has by his own admission abused alcohol, which has led to health and personal problems (hypertension, depression, and divorce) and also led to attendance problems at work. He has been treated for alcoholism a number of times. Pandit testimony and Pleading A.

3. Under the Collective Bargaining Agreement between the Commonwealth and Mr. Pandit's union, the National Association of Government Employees (NAGE), the Commonwealth may establish starting and quitting times of state jobs. Each employee receives a specified amount of sick time depending on the number of hours he or she works. Ex. 14.

4. On July 27, 2003, the Department terminated Mr. Pandit from his position. Ex. 9. He challenged the termination and, on May 4, 2005, an arbitrator overturned the decision finding that the Department lacked just cause for the discharge. Ex. 13.

5. Mr. Pandit resumed his employment with the Department on May 31, 2005. Pleading B and Pandit testimony. His health, however, remained impaired and he believed he was getting sicker. Pandit testimony. His doctor's notes from 2006 and 2007 reflect that he missed numerous days of work due to stomach bugs and other unspecified illnesses. Ex. 11. In his 2006 performance evaluation, his supervisor commented that: Sundar's overall evaluation is a meets but this is not to say all is well. Time and attendance questions persist and only Sundar can put these to rest.

Ex. 12.

6. In 2007, the Department terminated Mr. Pandit again. Pandit testimony and Ex. 8. He filed a grievance, which he, his union NAGE, and the Department subsequently settled. Pandit testimony and Ex. 5. In pertinent part, the settlement provided:

1. Mr. Pandit's employment at the Department will be terminated, effective April 18, 2007, due to his unreliable and unpredictable attendance, as demonstrated by a number of recent unauthorized absences as well as his conduct prior to his 2003 termination.

2. The Department agrees to provide Mr. Pandit with a termination of employment letter which shall reflect April 18, 2007 as Mr. Pandit's last date of employment with the Department. ...

6. ... This full, final and comprehensive Agreement resolves any and all matters relative to these issues pertaining to separation of Sundar Pandit's employment with the Department. No party hereto shall introduce this Agreement into any other case between the parties for any reason at any time except to enforce the terms therein.

Ex. 5. Mr. Pandit signed the settlement agreement on April 12, 2007. James Reynolds, a Department Deputy Commissioner, and Theresa McGoldrick, a NAGE representative, signed the agreement on April 18, 2007.

7. Mr. Pandit agreed to the settlement because he believed it would make him eligible for a termination retirement allowance under M.G.L. c.32, §10(2). He had a conversation with Department Deputy Commissioner Reynolds prior to accepting the settlement in which he understood Reynolds to say that the Department would furnish him a letter that would make him eligible for a termination retirement allowance. Pandit testimony.

8. The termination letter dated April 18, 2007 and signed by Department of Revenue Commissioner Alan LeBovidge stated: This is to notify you that I am terminating your employment with the Department of Revenue effective immediately.

By letters dated February 28, 2007 and December 8, 2006, I informed you that I was contemplating disciplinary action against you for your unauthorized absences from the Department. Specifically, you have had more that six periods of unauthorized absence from the Department from September 25, 2006 through the present. During these periods, you were absent from the Department in excess of your accrued leave time and did not qualify for any authorized unpaid leave under the terms of your collective bargaining agreement or federal law. On at least one occasion, you also failed to timely report your absence to your bureau.

As a result of your recent multiple unauthorized absence[s] from the Department and your lengthy past history of similar conduct, your attendance at work is inconsistent and unreliable. Your inconsistent and unreliable attendance greatly impacts your ability to effectively perform your job duties at the Department and provides just cause for the termination of your employment. The statements in this letter are accurate and made under the pains and penalties of perjury.

Ex. 8. Mr. Pandit understood this to be the letter Mr. Reynolds had promised him and thought it would make him eligible for a termination retirement allowance because the Commissioner swore under the pains and penalties of perjury that Mr. Pandit was not terminated because he broke any laws or had engaged in acts of moral turpitude. Pandit testimony. 9. On May 7, 2007, Mr. Pandit filed a retirement application. In a cover letter, he stated that he was seeking superannuation allowance under M.G.L. c. 32, §10. He stated that he was eligible because he had worked for over twenty years for the state and had been terminated as of April 17, 2007. As for his termination, he explained: My separation is based on being diagnosed with the following illnesses: hypertension, diverticulit[is], ulcers and depression, exacerbated by alcohol abuse. This was the causation of my absence problem and led directly to my termination within the meaning of Chapter 32, §10.

Ex. 6. He concluded by stating that "these conditions are the cause of my incapacitation and inability to perform my job." Ex. 6 Mr. Pandit attached to his application a memorandum dated April 29, 2007 from Paritosh Prasad, M.D., of MGH Back Bay Health Center. Dr Prasad stated: This is to certify that Sundar Pandit has medical conditions including hypertension, gastrointestinal ulcers, and diverticulitis for which he is receiving medical care. He also has depression and alcohol substance abuse which have resulted in absences from work. He would benefit from section 10 early retirement.

Ex. 6 10. On May 31, 2007, the State Board of Retirement voted to table Mr. Pandit's retirement application until it received further information. It informed Mr. Pandit of its action in a letter dated June 1, 2007. Ex. 7. Mr. Pandit heard that the Board tabled the matter because Theresa McGoldrick of NAGE, who represented him in the grievance and is a member of the State Retirement Board, told the Board she intended to recuse herself because she participated in the settlement of Mr. Pandit's grievance. He understood this made the Board aware of the existence of the settlement agreement, which the Board then asked to see. Pandit testimony.

12. On June 28, 2007, the Board voted to deny Mr. Pandit's request for a termination retirement allowance. It sent a letter to him dated June 30, 2007 informing him of this decision. Ex. 1. Ms. McGoldrick of NAGE did not participate in the decision. Pandit testimony.

13. Mr. Pandit asked the Board to reconsider its decision in a letter dated July 23, 2007. Ex. 3. The Board denied the request. Ex. 4.

14. Mr. Pandit requested a hearing in a letter dated July 6, 2007. Ex. 2. In a subsequent letter date June 18, 2008, he asked that a hearing be expedited. Ex. 10.

DISCUSSION

M.G.L. c. 32, §10(2)(a) provides for the award of a termination retirement allowance greater than the normal superannuation retirement allowance for any member who has at least twenty years of creditable service and who was involuntarily terminated from employment. A member may receive a termination retirement allowance when he "is removed or discharged from [his] position without moral turpitude." M.G.L. c. 32, §10(2)(a).

The parties agree that Mr. Pandit had more than twenty years of creditable service with the Department of Revenue and that he was discharged from his position without moral turpitude. But that does not end the matter because M.G.L. c. 32, §10(2)(c) provides that:

Any member who is removed or discharged for violation of the laws, rules and regulations applicable to his office or position ... shall not be entitled to the termination retirement allowances provided for in this subdivision.

The termination letter states explicitly that Mr. Pandit was discharged for unauthorized absence from work. Mr. Pandit does not dispute that the Department of Revenue had rules requiring him to show up for work or that he failed to follow those rules by being out sick so long between September 25, 2006 and April 18, 2007 that he had more than used up his accrued leave. Because this evidence shows that Mr. Pandit was terminated for violating the rules of the Department of Revenue, he is not entitled to a termination retirement allowance. This in notwithstanding whatever deal he thought he had with the Department when he settled his grievance. Both the settlement itself and the termination letter make clear the Department terminated him for attendance problems, thus making him ineligible for a termination retirement allowance. Mr. Pandit failed to realize this for he applied for a termination retirement allowance shortly thereafter. He thought that because the termination letter identified the cause of his discharge as something other than law breaking or moral turpitude, he would be eligible for a termination retirement allowance. In his application, he also sought to explain his termination stating that it was caused by "hypertension, diverticulit[is], ulcers and depression, exacerbated by alcohol abuse."

An employee may, under appropriate circumstances, obtain a termination retirement allowance if his employer terminates him because illness has left him unable to perform his job. See Dunlevy v. Teachers' Retirement Board, CR-03-1030 (DALA dec. 3/9/05; 2/14/05; CRAB dec. 12/29/05; Sup. Ct. dec. 4/4/07)(teacher terminated when back injury made him unable to perform his job entitled to termination retirement allowance); see also DesChamps v. State Board of Retirement, CR-07-432 (DALA dec. 10/11/07; no CRAB dec.)(orthopedic technician who was terminated after hospital refused to extend medical leave for hearing loss allegedly caused by work environment was entitled to termination retirement allowance).

There is no evidence that the Department of Revenue accepted that Mr. Pandit's attendance problems were caused by medical issues whether they be hypertension, depression, or alcoholism. Nor is there any evidence that Mr. Pandit took steps to bring his health issues to the attention of his employer as the reason for his attendance problems, either while he was employed at the Department or at the time of his termination. The Department had some leeway to take his health issues into consideration. The contract, for example, allowed an employee to take a sick leave if his absences were "due to the excessive use of alcohol" and he "becomes and continues to be an active participant in an approved counseling service program." Ex. 14. But all the evidence shows is that the Department, when evaluating Mr. Pandit, thought his attendance problems were within his sole control and that when it terminated him it did so based on those attendance problems without any hint that they were in any way related to underlying health issues. Exs. 8 and 12.

I nonetheless accept that from Mr. Pandit's perspective his attendance problems were caused by underlying health and alcohol problems. His testimony is credible and is supported by a brief memorandum from a treating physician who declared that depression and alcohol abuse led to Mr. Pandit's attendance problems. Ex. 6.

I see no reason, however, to reopen the dispute between Mr. Pandit and the Department over why he was terminated. That matter that was fully litigated at the time of Mr. Pandit's termination by the Department. The parties to the grievance were aware that not only was the question before them of whether Mr. Pandit's employment with the Department of Revenue should end, but that, if it ended, the manner in which it ended had the potential to impact the nature of his retirement allowance. They reached a resolution that attributed his termination solely to his attendance problems with no mention of the health problems that Mr. Pandit raises here.

That Mr. Pandit was under the erroneous impression that he would be eligible for a termination retirement allowance so long as his termination was for some reason other than moral turpitude or law breaking does not help him. He was terminated for violating Department attendance rules, which makes him ineligible for a termination retirement allowance. If he believes the Department misled him as to the impact of the termination letter it intended to write or the union failed to adequately advise him, he can take these matters up with the Department and the union.

The State Board of Retirement was not bound by the deal Mr. Pandit thought he had reached with the Department. It instead was obliged to make its own evaluation of whether he was entitled to a termination retirement allowance. The termination letter and the settlement agreement provided valid evidence to justify the Board's conclusion that Mr. Pandit was terminated for violating the Department of Revenue's attendance rules. Mr. Pandit is correct that the Board could not properly rely on the portion of the settlement agreement that referred to any attendance problems he had prior to his 2003 termination because that matter had been resolved by an arbitrator in his favor. It is not clear whether the Board considered his earlier attendance problems when it made its decision. I did not. Chapter 32, §10(2) focuses on matters as they stood at the time of an employee's termination. The evidence shows here that Mr. Pandit was terminated in 2007 for attendance problems that violated the rules of the Department of Revenue. Accordingly, I affirm the decision of the State Board of Retirement to deny Mr. Pandit a termination retirement allowance.